505 U.S.

469
112 S.Ct. 2589
120 L.Ed.2d 379

ESTATE OF Floyd COWART, Petitioner

v.
NICKLOS DRILLING COMPANY et al.
No. 91-17.
Argued March 25, 1992.
Decided June 22, 1992.

Syllabus *
Floyd Cowart, whose estate is the petitioner, was injured while working
on an oil drilling platform owned by Transco Exploration Company
(Transco), in an area subject to the Longshore and Harbor Workers'
Compensation Act (LHWCA or Act). The Department of Labor gave
respondent Compass Insurance Co. (Compass), the insurer for Cowart's
employer, respondent Nicklos Drilling Company (Nicklos), an informal
notice that Cowart was due permanent disability payments, but none were
ever made. In the meantime, Cowart settled a negligence action with
Transco, which Nicklos funded under an indemnification agreement with
Transco. However, Cowart did not secure from Nicklos or Compass a
formal, prior, written approval of the settlement. Subsequently, Cowart
filed a claim with the Department of Labor seeking disability payments
from Nicklos. Nicklos denied liability on the ground that recovery was
barred under 33(g) of the Act, which provides that a "person entitled to
compensation" must obtain prior written approval from the employer and
its insurer of any settlement of a third-party claim, 33(g)(1), and that the
failure of the "employee" to secure the approval results in forfeiture of all
rights under the Act, 33(g)(2). The Administrative Law Judge awarded
benefits, relying on past Benefits Review Board (BRB) decisions: one in
which the BRB held that in an earlier version of 33(g) the words "person
entitled to compensation" did not refer to a person not yet receiving
benefits; and another in which it held that, since this phrase was not
altered in the 1984 amendments to the LHWCA that added 33(g)(2),
Congress was presumed to have adopted the BRB's interpretation. The
Court of Appeals reversed, holding that 33(g) unambiguously provides

for forfeiture whenever an LHWCA claimant fails to meet the writtenapproval requirement.
Held: Section 33(g)'s forfeiture provision applies to a worker whose
employer, at the time the worker settles with a third party, is neither
paying compensation to the worker nor subject to an order to pay under
the Act. The section's language is plain and cannot support the BRB's
interpretation. The normal meaning of entitlement includes a right or
benefit for which a person qualifies, regardless of whether the right or
benefit has been acknowledged or adjudicated. Thus, Cowart became
"entitled to compensation" at the moment his right to recovery under the
Act vested. If the language of 33(g)(1) left any doubt, the ambiguity
would be eliminated by the statute's structure, especially the addition of
subsection (g)(2). This interpretation of 33(g) is reinforced by the fact
that the phrase "person entitled to compensation" is used elsewhere in the
statute in contexts in which it cannot bear Cowart's meaning, and is not
altered by the fact that subsection (g)(2) uses the term "employee" rather
than that phrase. Contrary to Cowart's argument, this interpretation of
33(g) gives full meaning to all of subsection (g)(2)'s notification and
consent requirements. The question whether Nicklos' participation in the
settlement brings this case outside 33(g)(1)'s terms is not addressed,
since it was not fairly included within the question on which certiorari
was granted. The possible harsh effects of 33(g) are recognized, but it is
the duty of the courts to enforce the judgment of the legislature; it is
Congress that has the authority to change the statute, not the courts. Pp.
475-484.
927 F.2d 828, (CA5 1991), affirmed.
KENNEDY, J., delivered the opinion of the Court, in which
REHNQUIST, C.J., and WHITE, SCALIA, SOUTER, and THOMAS, JJ.,
joined. BLACKMUN, J., filed a dissenting opinion, in which STEVENS
and O'CONNOR, JJ., joined.
Lloyd N. Frischhertz, New Orleans, La., for petitioner.
Michael R. Dreeben, Washington, D.C., for the federal respondent.
H. Lee Lewis, Jr., Houston, Tex., for private respondents.
Justice KENNEDY delivered the opinion of the Court.

The Longshore and Harbor Workers' Compensation Act (LHWCA), 44 Stat.

1424, as amended, 33 U.S.C. 901 et seq., creates a comprehensive federal

scheme to compensate workers injured or killed while employed upon the
navigable waters of the United States. The Act allows injured workers, without
forgoing compensation under the Act, to pursue claims against third parties for
their injuries. But 33(g) of the LHWCA, 33 U.S.C. 933(g), provides that
under certain circumstances if a third-party claim is settled without the written
approval of the worker's employer, all future benefits including medical
benefits are forfeited. The question we must decide today is whether the
forfeiture provision applies to a worker whose employer, at the time the worker
settles with a third party, is neither paying compensation to the worker nor is
yet subject to an order to pay under the Act.
2

* The injured worker in this case was Floyd Cowart, and his estate is now the
petitioner. Cowart suffered an injury to his hand on July 20, 1983, while
working on an oil drilling platform owned by Transco Exploration Company
(Transco). The platform was located on the Outer Continental Shelf, an area
subject to the Act. 43 U.S.C. 1333(b). Cowart was an employee of the
Nicklos Drilling Company (Nicklos), who along with its insurer Compass
Insurance Co. (Compass) are respondents before us. Nicklos and Compass paid
Cowart temporary disability payments for 10 months following his injury. At
that point Cowart's treating physician released him to return to work, though he
found Cowart had a 40% permanent partial disability. App. 75. The Department
of Labor notified Compass that Cowart was owed permanent disability
payments in the total amount of $35,592.77, plus penalties and interest. This
was an informal notice which did not constitute an award. No payments were
made.

Cowart, meanwhile, had filed an action against Transco alleging that Transco's
negligence caused his injury. On July 1, 1985, Cowart settled the action for
$45,000, of which he received $29,350.60 after attorney's fees and expenses.
Nicklos funded the entire settlement under an indemnification agreement with
Transco, and it had prior notice of the settlement amount. But Cowart made a
mistake: he did not secure from Nicklos a formal, prior, written approval of the
Transco settlement.

After settling, Cowart filed an administrative claim with the Department of

Labor seeking disability payments from Nicklos. Nicklos denied liability on the
grounds that under the terms of 33(g)(2) of the LHWCA, Cowart had
forfeited his benefits by failing to secure approval from Nicklos and Compass
of his settlement with Transco, in the manner required by 33(g)(1).
Section 33(g) provides in pertinent part:

"(g) Compromise obtained by person entitled to compensation

"(1) If the person entitled to compensation (or the person's representative)

enters into a settlement with a third person referred to in subsection (a) of this
section for an amount less than the compensation to which the person (or the
person's representative) would be entitled under this chapter, the employer shall
be liable for compensation as determined under subsection (f) of this section
only if written approval of the settlement is obtained from the employer and the
employer's carrier, before the settlement is executed, and by the person entitled
to compensation (or the person's representative). The approval shall be made on
a form provided by the Secretary and shall be filed in the office of the deputy
commissioner within thirty days after the settlement is entered into.

"(2) If no written approval of the settlement is obtained and filed as required by

paragraph (1), or if the employee fails to notify the employer of any settlement
obtained from or judgment rendered against a third person, all rights to
compensation and medical benefits under this chapter shall be terminated,
regardless of whether the employer or the employer's insurer has made
payments or acknowledged entitlement to benefits under this chapter." 33
U.S.C. 933(g).

The Administrative Law Judge rejected Nicklos' argument on the basis of prior
interpretations of 33(g) by the Benefits Review Board (Board or BRB). In the
first of those decisions, O'Leary v. Southeast Stevedoring Co., 7 BRBS 144
(1977), aff'd mem., 622 F.2d 595 (CA9 1980), the Board held that in an earlier
version of 33(g) the words "person entitled to compensation" referred only to
injured employees whose employers were making compensation payments,
whether voluntary or pursuant to an award. The O'Leary decision held that a
person not yet receiving benefits was not a "person entitled to compensation,"
even though the person had a valid claim for benefits.

The statute was amended to its present form, the form we have quoted, in 1984.
In that year Congress redesignated then subsection (g) to what is now (g)(1)
and modified its language somewhat, but did not change the phrase "person
entitled to compensation." Congress also added the current subsection (g)(2), as
well as other provisions. Following the 1984 amendments the Board decided
Dorsey v. Cooper Stevedoring Co., 18 BRBS 25 (1986), app. dism'd 826 F.2d
1011 (CA11 1987). The Board reaffirmed its interpretation in O'Leary of the
phrase "person entitled to compensation," saying that because the 1984
amendments had not changed the specific language, Congress was presumed to
have adopted the Board's previous interpretation. It noted that nothing in the
1984 legislative history disclosed an intent to overrule the Board's

interpretations. The Board decided that the forfeiture provisions of subsection

(g)(2), including the final phrase providing that forfeiture occurs "regardless of
whether the employer . . . has made payments or acknowledged entitlement to
benefits," was a "separate provisio[n] applicable to separate situations." 18
BRBS, at 29.
10

The ALJ in this case held that under the reasoning of O'Leary and Dorsey,
Cowart was not a person entitled to compensation because he was not receiving
payments at the time of the Transco settlement. Thus, the written-approval
provision did not apply and Cowart was entitled to benefits. Cowart's total
disability award was for $35,592.77, less Cowart's net recovery from Transco
of $29,350.60, for a net award of $6242.17. In addition, Cowart was awarded
interest, attorney's fees, and future medical benefits, the last constituting, we
think, a matter of great potential consequence. The Board affirmed in reliance
on Dorsey. 23 BRBS 42 (1989) (per curiam ).

11

On review, a panel of the Court of Appeals for the Fifth Circuit reversed. 907
F.2d 1552 (1990). Without addressing the Board's specific statutory
interpretation, it held that 33(g) contains no exceptions to its written-approval
requirement. Because this holding, and a decision by a panel in a different case,
Petroleum Helicopters, Inc. v. Barger, 910 F.2d 276 (CA5 1990), conflicted
with a previous unpublished decision in the same Circuit, Kahny v. O.W.C.P.,
729 F.2d 777 (CA5 1984), the Court of Appeals granted rehearing en banc. The
Director of the Office of Workers' Compensation Programs (OWCP), a part of
the Department of Labor, 20 CFR 701.201 (1991), appeared as a respondent
before the full Court of Appeals to defend the interpretation and decision of the
Board.

12

In a per curiam opinion, the en banc Court of Appeals confirmed the panel's
decision reversing the BRB in its Cowart case. 927 F.2d 828 (CA5 1991). The
Court of Appeals' majority held that 33(g) is unambiguous in providing for
forfeiture whenever an LHWCA claimant fails to get written approval from his
employer of a third-party settlement. The majority acknowledged the wellestablished principle requiring judicial deference to reasonable interpretations
by an agency of the statute it administers, but concluded that the plain language
of 33(g) leaves no room for interpretation. Judge Politz, joined by Judges
King and Johnson, dissented on the ground that the OWCP's was a reasonable
agency interpretation of the phrase "person entitled to compensation," to which
the Court of Appeals should have deferred.

13

We granted certiorari because of the large number of LHWCA claimants who

might be affected by the Court of Appeals' decision. 502 U.S. ----, 112 S.Ct.

635, 116 L.Ed.2d 653 (1991). We now affirm.

II
14

In a statutory construction case, the beginning point must be the language of

the statute, and when a statute speaks with clarity to an issue judicial inquiry
into the statute's meaning, in all but the most extraordinary circumstance, is
finished. Demarest v. Manspeaker, 498 U.S. ----, ----, 111 S.Ct. 599, 603, 112
L.Ed.2d 608 (1991). The question is whether Cowart, at the time of the
Transco settlement, was a "person entitled to compensation" under the terms of
33(g)(1) of the LHWCA. Cowart concedes that he did not comply with the
written-approval requirements of the statute, while Nicklos and Compass do
not claim that they lacked notice of the Transco settlement. By the terms of
33(g)(2), Cowart would have forfeited his LHWCA benefits if, and only if, he
was subject to the written-approval provisions of 33(g)(1). Cowart claims that
he is not subject to the approval requirement because in his view the phrase
"person entitled to compensation," as long interpreted by both the BRB and the
OWCP, limits the reach of 33(g)(1) to injured workers who are either already
receiving compensation payments from their employer, or in whose favor an
award of compensation has been entered. Nicklos and Compass, supported by
the United States, defend the holding of the Court of Appeals that 33(g)
cannot support that reading. We agree with these respondents and hold that
under the plain language of 33(g), Cowart forfeited his right to further
LHWCA benefits by failing to obtain the written approval of Nicklos and
Compass prior to settling with Transco.

15

The controlling principle in this case is the basic and unexceptional rule that
courts must give effect to the clear meaning of statutes as written. The principle
can at times come into some tension with another fundamental principle of our
law, one requiring judicial deference to a reasonable statutory interpretation by
an administering agency. Chevron U.S.A. Inc. v. Natural Resources Defense
Council, Inc., 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984); National
R. Passenger Corp. v. Boston & Maine Corp., 503 U.S. ----, ----, 112 S.Ct.
1394, 1401, 118 L.Ed.2d 52 (1992). Of course, a reviewing court should not
defer to an agency position which is contrary to an intent of Congress expressed
in unambiguous terms. K mart Corp. v. Cartier, Inc., 486 U.S. 281, 291, 108
S.Ct. 1811, 1817, 100 L.Ed.2d 313 (1988); Chevron, supra, 467 U.S., at 842843, 104 S.Ct., at 2781, 2782. In any event, we need not resolve any tension of
that sort here, because the Director of the OWCP and the Department of Labor
have altered their position regarding the best interpretation of 33(g). The
Director appears as a respondent before us, arguing in favor of the Court of
Appeals' statutory interpretation, and contrary to his previous position. See

Brief for Federal Respondent 8, n. 6. If the Director asked us to defer to his new
statutory interpretation, this case might present a difficult question regarding
whether and under what circumstances deference is due to an interpretation
formulated during litigation. See Bowen v. Georgetown University Hospital,
488 U.S. 204, 212-213, 109 S.Ct. 468, 473, 102 L.Ed.2d 493 (1988); Martin v.
Occupational Safety and Health Review Comm'n, 499 U.S. ----, ----, 111 S.Ct.
1171, 1179, 113 L.Ed.2d 117 (1991). The agency does not ask this, however.
Instead, the federal respondent argues that the Court of Appeals was correct in
saying the language 33(g) is plain and cannot support the interpretation given
it by the Board. Because we agree with the federal respondent and the Court of
Appeals, and because Cowart concedes that the position of the BRB is not
entitled to any special deference, see Brief for Petitioner 25; see also Potomac
Electric Power Co. v. Director, Office of Worker's Compensation Programs,
449 U.S. 268, 278, n. 18, 101 S.Ct. 509, 514-515, n. 18, 66 L.Ed.2d 446 (1980);
Martin v. Occupational Safety and Health Review Comm'n, supra, we need not
resolve the difficult issues regarding deference which would be lurking in other
circumstances.
16

As a preliminary matter, the natural reading of the statute supports the Court of
Appeals' conclusion that a person entitled to compensation need not be
receiving compensation or have had an adjudication in his favor. Both in legal
and general usage, the normal meaning of entitlement includes a right or benefit
for which a person qualifies, and it does not depend upon whether the right has
been acknowledged or adjudicated. It means only that the person satisfies the
prerequisites attached to the right. See generally Board of Regents of State
Colleges v. Roth, 408 U.S. 564, 577, 92 S.Ct. 2701, 2709, 33 L.Ed.2d 548
(1972) (discussing property interests protected by the Due Process Clause and
contrasting an entitlement to an expectancy); Black's Law Dictionary 532 (6th
ed. 1990) (defining "entitle" as "To qualify for; to furnish with proper grounds
for seeking or claiming"). Cowart suffered an injury which by the terms of the
LHWCA gave him a right to compensation from his employer. He became a
person entitled to compensation at the moment his right to recovery vested, not
when his employer admitted liability, an event even yet to happen.

17

If the language of 33(g)(1), in isolation, left any doubt, the structure of the
statute would remove all ambiguity. First, and perhaps most important, when
Congress amended 33(g) in 1984, it added the explicit forfeiture features of
33(g)(2), which specify that forfeiture occurs "regardless of whether the
employer or the employer's insurer has made payments or acknowledged
entitlement to benefits under this chapter." We read that phrase to modify the
entirety of subsection (g)(2), including the beginning part discussing the
written-approval requirement of paragraph (1). The BRB did not find this

amendment controlling because the quoted language is not an explicit

modification of subsection (1). This is a strained reading of what Congress
intended. Subsection (g)(2) leaves little doubt that the contemplated forfeiture
will occur whether or not the employer has made payments or acknowledged
liability.
18

The addition of subsection (g)(2) in 1984 also precludes the primary argument
made by the BRB in favor of its decisions in Dorsey and this case, and repeated
by Cowart to us: That Congress in 1984, by reenacting the phrase "person
entitled to compensation," adopted the Board's reading of that language in
O'Leary. The argument might have had some force if 33(g) had been
reenacted without changes, but that was not the case. In 1984 Congress did
more than reenact 33(g); it added new provisions and new language which on
their face appear to have the specific purpose of overruling the prior
administrative interpretation. In light of the clear import of 33(g)(2), the
Board erred in relying on the purported lack of legislative history showing an
explicit intent to reject the O'Leary decision. Even were it relevant, the Board's
reading of the legislative history is suspect because as the federal respondent
demonstrates, the legislative history of predecessor bills to the eventual 1984
enactment do indicate an intent to overturn O'Leary. See Longshoremen's and
Harbor Workers' Compensation Act Amendments of 1981: Hearings on S. 1182
before the Subcommittee on Labor of the Senate Committee on Labor and
Human Resources, 97th Cong., 1st Sess. 209, 210-211, 396 (1981). In any
event, administrative interpretation followed by congressional reenactment
cannot overcome the plain language of a statute. Demarest v. Manspeaker, 498
U.S., at ----, 111 S.Ct., at 603. And the language of 33(g) is plain.

19

Our interpretation of 33(g) is reinforced by the fact that the phrase "person
entitled to compensation" appears elsewhere in the statute in contexts in which
it cannot bear the meaning placed on it by Cowart. For example, 14(h) of the
LHWCA, 33 U.S.C. 914(h), requires an official to conduct an investigation
upon the request of a person entitled to compensation when, inter alia, the
claim is controverted and payments are not being made. For that provision, the
interpretation championed by Cowart would be nonsensical. Another difficulty
would be presented for the provision preceding 33(g), 33(f). It mandates
that an employer's liability be reduced by the net amount a person entitled to
compensation recovers from a third party. Under Cowart's reading, the
reduction would not be available to employers who had not yet begun payment
at the time of the third-party recovery. That result makes no sense under the
LHWCA structure. Indeed, when a litigant before the BRB made this
argument, the Board rejected it, acknowledging in so doing that it had adopted
differing interpretations of the identical language in sections 33(f) and 33(g).

Force v. Kaiser Aluminum and Chemical Corp., 23 BRBS 1, 4-5 (1989). This
result is contrary to the basic canon of statutory construction that identical
terms within an Act bear the same meaning. Sullivan v. Stroop, 496 U.S. 478,
484, 110 S.Ct. 2499, ----, 110 L.Ed.2d 438 (1990); Sorenson v. Secretary of
Treasury, 475 U.S. 851, 860, 106 S.Ct. 1600, 1606, 89 L.Ed.2d 855 (1986).
The Board's willingness to adopt such a forced and unconventional approach
does not convince us we should do the same. And we owe no deference to the
BRB, see supra, at ----.
20

Yet another reason why we are not convinced by the Board's position is that
the Board's interpretation of "person entitled to compensation" has not been
altogether consistent; and Cowart's interpretation may not be the same as the
Board's in precise respects. At times the Board has said this language refers to
an employee whose "employer is actually paying compensation either pursuant
to an award or voluntarily when claimant enters into a third party settlement."
Dorsey, 18 BRBS, at 28; 23 BRBS, at 44 (case below). At other times,
sometimes within the same opinion, the Board has spoken in terms of the
employer either making payments or acknowledging liability. O'Leary, 7
BRBS, at 147-149; Dorsey, 18 BRBS, at 29; see also In re Wilson, 17 BRBS
471, 480 (ALJ 1985). Cowart, on the other hand, would include within the
phrase both employees receiving compensation benefits and employees who
have a judicial award of compensation but are not receiving benefits. Brief for
Petitioner 6. This distinction is an important part of Cowart's response to the
position of the United States. Reply Brief for Petitioner 8. It may be that the
gap between the Board's and Cowart's positions can be explained by the Board's
inconsistency; but that in itself weakens any argument that the Board's
interpretation is entitled to some weight.

21

We do not believe that Congress' use of the word "employee" in subsection (g)
(2), rather than the phrase "person entitled to compensation," undercuts our
reading of the statute. The plain meaning of subsection (g)(1) cannot be altered
by the use of a somewhat different term in another part of the statute.
Subsection (g)(2) does not purport to speak to the question of who is required
under subsection (g)(1) to obtain prior written approval.

22

Cowart's strongest argument to the Court of Appeals was that any ambiguity in
the statute favors him because of the deference due the OWCP Director's
statutory construction, a deference which Nicklos and Compass concede is
appropriate. Brief for Respondents 7. As we have said, we are not faced with
this difficult issue because the views of the Director, OWCP, have changed
since we granted certiorari. Supra, at ----. It seems apparent to us that it would
be quite inappropriate to defer to an interpretation which has been abandoned

by the policymaking agency itself. It is noteworthy, moreover, that even prior

to this case the position of the Department of Labor has not been altogether
consistent. It is true that the Director has twice, albeit in a somewhat equivocal
manner, endorsed the Board's rulings in O'Leary and Dorsey. First, in a 1986
circular discussing the Board's Dorsey case a subordinate of the Director stated:
"While the Board's position may not be totally consistent with the amended
language of Section 33(g), we think it is a rational approach and have advised
the Associate Solicitor that we will support this position." United States Dept.
of Labor, LHWCA Circular No. 86-3, p. 1 (May 30, 1986). Next, in a Manual
published in 1989 the Director again adopted the Board's position that written
approval of a settlement is required only from employers who are paying
compensation; but the statement ends with a qualifying comment, that "[t]he
issue of consent to a settlement can be a complex matter. Judicial interpretation
may be necessary to resolve the issue. (See LHWCA CIRCULAR 86-03, 5-3086)." United States Dept. of Labor, Longshore and Harbor Workers'
Compensation Act (LHWCA) Procedure Manual, ch. 3-600, 9 (Sept. 1989).
On the other hand, the Department of Labor has issued regulations (effective in
their current form since 1986) which are explicit that the written-approval
requirement of 33(g) applies to a settlement for less than the amount of
compensation due under the LHWCA, "regardless of whether the employer or
carrier has made payments of [sic] acknowledged entitlement to benefits under
the Act." 20 CFR 702.281(b) (1991). So the Department of Labor has not
been speaking with one voice on this issue. This further diminishes the
persuasive power of the Director's earlier decision to endorse the BRB's
questionable interpretation, a decision he has since reconsidered.
23

The history of the Department of Labor regulation goes far toward confirming
our view of the significance of the 1984 amendments. The original 702.281,
proposed in 1976 and enacted in final form in 1977, required only that an
employee notify his employer and the Department of any third-party claim,
settlement, or judgment. 41 Fed.Reg. 34297 (1976); 42 Fed.Reg. 45303 (1977).
The sole reference to the forfeiture provisions was a closing parenthetical:
"Caution: See 33 U.S.C. 933(g)." In 1985, in response to the 1984
congressional amendments, the Department proposed to amend 702.281 by
replacing the closing parenthetical with a subsection (b), stating that failure to
obtain written approval of settlements for amounts less than the compensation
due under the Act would lead to forfeiture of future benefits. 50 Fed.Reg. 400
(1985). In response to comments, the final rulemaking modified 702.281(b)
to clarify that the forfeiture provision applied regardless of whether the
employer was paying compensation. 51 Fed.Reg. 4284-4285 (1986). Thus the
evolution of 702.281 suggests that at least some elements within the
Department of Labor read the 1984 statutory amendments to adopt a rule

different from the Board's previous decisions.

24

We also reject Cowart's argument that our interpretation of 33(g) leaves the
notification requirements of 33(g)(2) without meaning. An employee is
required to provide notification to his employer, but is not required to obtain
written approval, in two instances: (1) Where the employee obtains a judgment,
rather than a settlement, against a third party; and (2) Where the employee
settles for an amount greater than or equal to the employer's total liability.
Under our construction the written approval requirement of 33(g)(1) is
inapplicable in those instances, but the notification requirement of 33(g)(2)
remains in force. That is why subsection (g)(2) mandates that an employer be
notified of "any settlement."

25

This view comports with the purposes and structure of 33. Section 33(f)
provides that the net amount of damages recovered from any third party for the
injuries sustained reduces the compensation owed by the employer. So the
employer is a real party in interest with respect to any settlement that might
reduce but not extinguish the employer's liability. The written-approval
requirement of 33(g) "protects the employer against his employee's accepting
too little for his cause of action against a third party." Banks v. Chicago Grain
Trimmers, 390 U.S. 459, 467, 88 S.Ct. 1140, 1145, 20 L.Ed.2d 30 (1968). In
cases where a judgment is entered, however, the employee does not determine
the amount of his recovery, and employer approval, even if somehow feasible,
would serve no purpose. And in cases where the employee settles for greater
than the employer's liability, the employer is protected regardless of the precise
amount of the settlement because his liability for compensation is wiped out.
Notification provides full protection to the employer in these situations because
it ensures against fraudulent double recovery by the employee.

26

As a final line of defense, Cowart's attorney suggested at oral argument that

Nicklos' participation in the Transco settlement brought this case outside the
terms of 33(g)(1). Tr. of Oral Arg. 4-7. Relying on the recent decision of the
Court of Appeals for the Fourth Circuit in I.T.O. Corporation of Baltimore v.
Sellman, 954 F.2d 239, 242-243 (1992), counsel argued that 33(g)(1) requires
written approval only of "settlement[s] with a third person," and that Nicklos'
participation in the Transco settlement meant it was not with a third person.
Without indicating any view on the merits of this contention, we do not address
it because it is not fairly included within the question on which certiorari was
granted. See this Court's Rule 14.1(a).

27

We need not today decide the retroactive effect of our decision, nor the
relevance of res judicata principles for other LHWCA beneficiaries who may

be affected by our decision. Compare Pittston Coal Group v. Sebben, 488 U.S.
105, 121-123, 109 S.Ct. 414, 423-425, 102 L.Ed.2d 408 (1988). We do
recognize the stark and troubling possibility that significant numbers of injured
workers or their families may be stripped of their LHWCA benefits by this
statute, and that its forfeiture penalty creates a trap for the unwary. It also
provides a powerful tool to employers who resist liability under the Act.
Counsel for respondents stated during oral argument that he had used the
Transco settlement as a means of avoiding Nicklos' liability under the
LHWCA. Tr. of Oral Arg. 23-26. These harsh effects of 33(g) may be
exacerbated by the inconsistent course followed over the years by the federal
agencies charged with enforcing the Act. But Congress has spoken with great
clarity to the precise question raised by this case. It is the duty of the courts to
enforce the judgment of the Legislature, however much we might question its
wisdom or fairness. Often we have urged the Congress to speak with greater
clarity, and in this statute it has done so. If the effects of the law are to be
alleviated, that is within the province of the Legislature. It is Congress that has
the authority to change the statute, not the courts.
28

For the reasons stated, the judgment of the Court of Appeals is

29

Affirmed.

30

Justice BLACKMUN, with whom Justice STEVENS and Justice O'CONNOR

join, dissenting.

31

For more than 14 years, the Director of the Office of Workers' Compensation
Programs interpreted the Longshore and Harbor Workers' Compensation Act,
44 Stat. 1424, as amended, 33 U.S.C. 901 et seq. (LHWCA or the Act), in the
very same way that petitioner Floyd Cowart's estate now urges. Indeed, the
Director advocated Cowart's position in the Court of Appeals, both before the
panel and before that court en banc.

32

After certiorari was granted, however, and after Cowart's opening brief was
filed, the United States informed this Court: "In light of the en banc decision in
this case, the Department of Labor reexamined its views on the issue." Brief for
Federal Respondent 8, n. 6. The United States now assures us that the
interpretation the Director advanced and defended for 14 years is inconsistent
with the statute's "plain meaning." The Court today accepts that improbable
contention, and in so doing rules that perhaps thousands of employees and their
families must be denied death and disability benefits. I cannot agree with the
Government's newly discovered interpretation, and still less do I find it to be

compelled by the "plain meaning" of the statute. The Court needlessly inflicts
additional injury upon these workers and their families. I dissent.
33

* Ever since the LHWCA was adopted in 1927, it has included some version of
the present 33(g), 33 U.S.C. 933(g), the provision at issue in this case.
Because that provision cannot be considered in isolation from the broader
context of 33, or indeed, the LHWCA as a whole, some background on the
structure of the Act and the history of 33's interpretation is essential.

A.
34

The LHWCA requires employers to provide compensation, "irrespective of

fault," for injuries and deaths arising out of covered workers' employment.
3(a) and 4(b), 33 U.S.C. 903(a) and 904(b). In return for requiring the
employer to pay statutory compensation without proof of negligence, the Act
grants the employer immunity from tort liability, regardless of how serious its
fault may have been. See 5(a) and 33(i). Benefits under the LHWCA are
strictly limited, generally to medical expenses and two-thirds of lost earnings,
and are set out in detailed schedules contained in the Act itself. See 7-9. A
fundamental assumption of the Act is that employers liable for benefits will
pay compensation "promptly," "directly," and "without an award" having to be
issued. See 14(a).

35

In a case where a third party may be liable, the LHWCA does not require a
claimant to elect between statutory compensation and tort recovery. 33(a).
Where a claimant has accepted compensation under a formal award, then,
within a specified time, he may file a civil action against the third party.
33(b). If a claimant recovers in that action, his compensation under the
LHWCA is limited to the excess, if any, of his statutory compensation over the
net amount of his recovery. 33(f). Section 33(f) thus operates as a set-off
provision, allowing an employer to reduce its LHWCA liability by the net
amount a claimant obtains from a third party. Where the claimant nets as much
or more from the third party as he would have received from his employer
under the LHWCA, the employer owes him no benefits.

36

Section 33(g) of the LHWCA, 33 U.S.C. 933(g), addresses the situation in

which a claimant-plaintiff settles an action against a third party for less than he
would have received under the Act. Under 33(f), considered alone, the
claimant in this situation would always be able to collect the remainder of his
statutory benefits from the employer. To protect the employer from having to
pay excessive 33(f) compensation because of an employee's "lowball"
settlement, 33(g) conditions LHWCA compensation, in specified

circumstances, upon the employer's written approval of the third-party

settlement. See Banks v. Chicago Grain Trimmers, 390 U.S. 459, 467, 88 S.Ct.
1140, 1145, 20 L.Ed.2d 30 (1968).
37

Before the LHWCA's 1984 amendments, 33(g) provided that if a "person

entitled to compensation" settled for less than the compensation to which he
was entitled under the Act, then the employer would be liable for
compensation, as determined in 33(f), only if the person obtained and duly
filed with the Department of Labor the employer's written approval of the
settlement. The meaning of the term "person entitled to compensation" has
proved to be a difficult issue, both in the pre-1984 version of the Act andas
this case demonstratesin the Act's current form.

B
38

This issue apparently was considered first in O'Leary v. Southeast Stevedoring

Co., 7 Ben.Rev.Bd.Serv. 144 (1977), aff'd, 622 F.2d 595 (CA9 1980). In that
case, the employer denied liability for the death of the claimant's husband,
contending that the decedent was not an employee covered by the LHWCA and
that the injury did not arise out of his employment. 7 Ben.Rev.Bd.Serv., at 145.
The employer persisted in denying liability even after its position was rejected
by the Benefits Review Board ("BRB").1 See id., at 146-147. Eventually, more
than 28 months after her husband's accident, the claimant settled a third-party
suit for $37,500. About one month thereafter, an Administrative Law Judge
(ALJ), on remand from the BRB, entered an award for the claimant. The value
of the death benefits awarded, assuming that the claimant would live out her
normal life expectancy without remarrying, amounted to more than $150,000.
See O'Leary v. Southeast Stevedoring Co., 5 Ben.Rev.Bd.Serv. 16 (ALJ) and 20
(ALJ) (1976). At that point, the employer contested liability for any
compensation on the ground that, under 33(g), the claimant had forfeited that
compensation by failing to obtain the employer's written approval of the
settlement.

39

The ALJ rejected the employer's position, reasoning that the claimant was not a
"person entitled to compensation" at the time of the settlement. The BRB
affirmed. The Board pointed out that the "underlying concept" of the LHWCA
is that "the employer upon being informed of an injury will voluntarily begin to
pay compensation." O'Leary, 7 Ben.Rev.Bd.Serv., at 147 (citing 14(a)).
Further, the Board observed, 33(g) refers to the conditions under which an
employer will be "liable" for compensation under 33(f); the reference to
"liability," the Board reasoned, "contemplat[es] that the employer either be
making voluntary payments under the Act or that it ha[s] been found liable for

benefits by a judicial determination." Id., at 148. Moreover, the Board

continued, 33(b) gives the employer the right to pursue third parties only if
the employer is paying compensation under an award. Thus, the premise of
employer rights under 33, the Board concluded, is that the employer is
"making either voluntary payments under the Act or pursuant to an award."
Ibid. The BRB observed that the employer in O'Leary had not paid
compensation either voluntarily or pursuant to an award, but, instead,
consistently had denied liability. It could hardly have been clear to the claimant
at the time she settled her third-party suit that the BRB would ultimately decide
in her favor. Indeed, only after that settlement and after the ALJ award did the
employer concede that the claimant represented a "person entitled to
compensation," and then only to argue that, for that reason, she had forfeited
her right to compensation under 33(g). The Board emphasized that the
employer's interpretation would place claimants in a severe bind:
40

"If a claimant was injured through the negligence of a third party and the
employer denied coverage under the Act, a claimant would be forced to sue the
third party. However, even if the claimant obtained a reasonable settlement
offer, an employer could refuse to give its consent to the third party settlement
for any number of reasons, e.g., it does not wish to approve the settlement on a
form provided under the Act since its consent to jurisdiction under the Act
might be inferred. This could result in a claimant not being paid any
compensation, yet the claimant would be afraid to make a third party settlement
for in so doing he might waive his rights to compensation under the Act.
Ultimately, a claimant going without income for a long enough time could be
forced into a third party settlement without employer's consent to obtain
money. . . ." Id., at 149.

41

And under the employer's interpretation of 33(g), the employee would

thereby forfeit all right to compensation under the Act. Surely, the Board
concluded, "Congress by requiring written consent could not have
contemplated such a result." Ibid.

42

The Court of Appeals for the Ninth Circuit affirmed in an unpublished opinion,
App. 113, stating: "The Board's ruling is reasonable and furthers the underlying
purpose of the Act." Id., at 117. The Court of Appeals for the Fifth Circuit, in
an unpublished opinion, upheld a similar BRB decision in 1984, finding the
O'Leary approach "fully consistent with the language, legislative history, and
rationale of" 33(g). See Kahny v. OWCP, 729 F.2d 777 (table) and App. 96,
108. No other courts had occasion to examine the O'Leary interpretation before
the LHWCA was next amended.

C
43

The Longshore and Harbor Workers' Compensation Act Amendments of 1984,

98 Stat. 1639, revisited 33(g). Id., at 1652. The former 33(g) was carried
over, with minor changes not relevant here, as 33(g)(1), and a new subsection
(g)(2) was added. Section 33(g) now reads as follows:

44

"(1) If the person entitled to compensation (or the person's representative)

enters into a settlement with a third person referred to in subsection (a) of this
section for an amount less than the compensation to which the person (or the
person's representative) would be entitled under this Act, the employer shall be
liable for compensation as determined under subsection (f) only if written
approval of the settlement is obtained from the employer and the employer's
carrier, before the settlement is executed, and by the person entitled to
compensation (or the person's representative). The approval shall be made on a
form provided by the Secretary and shall be filed in the office of the deputy
commissioner within thirty days after the settlement is entered into.

45

"(2) If no written approval of the settlement is obtained and filed as required by

paragraph (1), or if the employee fails to notify the employer of any settlement
obtained from or judgment rendered against a third person, all rights to
compensation and medical benefits under this Act shall be terminated,
regardless of whether the employer or the employer's insurer has made
payments or acknowledged entitlement to benefits under this Act."

46

In Dorsey v. Cooper Stevedoring Co., 18 Ben.Rev.Bd.Serv. 25 (1986), appeal

dism'd sub nom. Cooper Stevedoring Co. v. Director, 826 F.2d 1011 (CA11
1987), the Board rejected an employer's argument that the final clause of the
new 33(g)(2) should be understood as overturning the O'Leary rule that no
duty to obtain approval arises until the employer begins to pay compensation.
Subsection (g)(1), the Board stated, reenacted the prior version of 33(g) as it
was interpreted in O'Leary; the new subsection, (g)(2), was intended to apply
to situations not covered by (g)(1) or O'Leary. In these situationswhere the
employer has neither paid compensation nor acknowledged liability notice, but
not written approval, is required. 18 Ben.Rev.Bd.Serv., at 29-30. The Board
interpreted the final clause of (g)(2)language that echoes the Board's words
in O'Leary to make clear that the notification requirement, described in (g)
(2), was not subject to the O'Leary limitation that is incorporated in (g)(1). Id.,
at 29.

47

This interpretation is reinforced, the Board continued, by two other

considerations. First, although in a number of instances the 1984 legislative

history indicates a congressional intention to override other BRB and judicial
decisions, that history "indicates no congressional intent to overrule O'Leary."
Id., at 30. Second, the Board observed, this Court has held that the LHWCA
"should be construed in order to further its purpose of compensating
longshoremen and harbor workers 'and in a way which avoids harsh and
incongruous results.' " Id., at 31, quoting Voris v. Eikel, 346 U.S. 328, 333, 74
S.Ct. 88, 91, 98 L.Ed. 5 (1953), and citing Northeast Marine Terminal Co. v.
Caputo, 432 U.S. 249, 268, 97 S.Ct. 2348, 2359, 53 L.Ed.2d 320 (1977). As
O'Leary made clear, allowing employers to escape all LHWCA liability by
withholding approval from any settlement, while refusing to pay benefits or
acknowledge liability, could hardly be thought consistent with the purpose of
encouraging prompt, voluntary payment of LHWCA compensation.
D
48

Such was the legal background against which Cowart's claim was considered.
In the administrative proceedings, the BRB relied on O'Leary and Dorsey to
reject the argument, offered by respondent Nicklos Drilling Company, that by
failing to obtain prior written approval of his third-party settlement Cowart had
forfeited his LHWCA benefits. Because Nicklos was not paying Cowart
benefits, either voluntarily or under an award, the Board reasoned, Cowart was
not a "person entitled to compensation" within the meaning of 33(g)(1), and
he therefore was not required to obtain Nicklos' approval of his settlement. 23
Ben.Rev.Bd.Serv. 42, 46 (1989). Instead, the Board held, Cowart was required
only to give Nicklos notice of the settlement, as provided in 33(g)(2).
Because Nicklos indisputably had notice of the settlementindeed, it had
notice three months before the settlement was consummatedthe Board ruled
Cowart was eligible for LHWCA benefits.

49

On Nicklos' petition for review, the Director of the Office of Workers'

Compensation Programs ("OWCP")head of the agency charged with
administering the Actdefended the Board's interpretation before the Court of
Appeals for the Fifth Circuit. First a panel of the Court of Appeals, and then the
full court, by a divided vote sitting en banc, however, rejected the Director's
position, ruling that Cowart was a "person entitled to compensation" and was
required by 33(g)(1) to obtain Nicklos' written approval. See 907 F.2d 1552
(1990) (panel), and 927 F.2d 828 (1991) (en banc). We are told that after this
Court granted certiorari, and after Cowart filed his opening brief, the Director
"reexamined" his position and argued that the interpretation of 33(g) he had
maintained for 14 years, and defended in the Court of Appeals, was inconsistent
with the Act's plain meaning.

II
50

This Court today agrees with the Director's post-certiorari position that
Cowart's claim for compensation is barred by the "clear meaning" of the statute
"as written." Ante, at 476. According to the Court, Cowart is plainly a "person
entitled to compensation" within the meaning of 33(g)(1), and his failure to
obtain Nicklos' written approval of his third-party settlement requires, by the
"plain language" of 33(g), that he be deemed to have forfeited his statutory
benefits. Although the Court does not identify any plausible statutory purpose
whatsoever advanced by its reading, and althoughto its creditit
acknowledges the "harsh effects" of its interpretation, ante, at 483, the Court
ultimately concludes that the language of 33 compels it to reject Cowart's
position.

51

In my view, the language of 33 in no way compels the Court to deny Cowart's

claim. In fact, the Court's reliance on the Act's "plain language," ante, at 475, is
selective: as discussed below, analysis of 33(b) and (f) of the Act shows that,
even leaving aside the question whether Cowart is a "person entitled to
compensation," a consistently literal interpretation of the Act's language would
not require Cowart to have obtained Nicklos' written approval of the settlement.
Indeed, under a thoroughgoing "plain meaning" approach, Cowart would be
entitled to receive full LHWCA benefits in addition to his third-party
settlement, not just the excess of his statutory benefits over the settlement.

52

At the same time, a consistently literal interpretation of the Act would commit
the Court to positions it might be unwilling to take. The conclusion I draw is
not that the Court should adopt a purely literal interpretation of the Act, but
instead that the Court should recognize, as it has until today, that the LHWCA
must be read in light of the purposes and policies it would serve. Once that
point is recognized, then, as suggested by the Court's closing remarks on the
"stark and troubling" implications of its interpretation, ante, at 483, it follows
that recognition of Cowart's claim is fully consistent with the Act.

A.
53

Were the Court truly to interpret the Act "as written," it would not conclude
that Cowart is barred from receiving compensation. Section 33(g)(1) of the
LHWCA, on which the Court's "plain meaning" argument relies, provides that
if a "person entitled to compensation" settles with a third party for an amount
less than his statutory benefits, his employer will be "liable for compensation
as determined under subsection (f) " only if the "person entitled to
compensation" obtains and files the employer's written approval. The "plain

language" of subsection (g)(1) does not establish any general written approval
requirement binding either all "persons entitled to compensation," or the subset
of those persons who settle for less than their statutory benefits. Instead, it
requires written approval only as a condition of receiving compensation "as
determined under subsection (f)." Where the "person entitled to compensation"
is not eligible for compensation "as determined under subsection (f),"
subsection (g)(1) does not require him to obtain written approval.
54

The "plain language" of subsection (f) in turn suggests that the provision does
not apply to Cowart's situation. Subsection (f), by its terms, applies only "[i]f
the person entitled to compensation institutes proceedings within the period
prescribed in subsection (b)." And the "period prescribed in subsection (b)"
begins, by the terms of that subsection, upon the person's "[a]cceptance of
compensation under an award in a compensation order filed by the deputy
commissioner, an administrative law judge, or the Board." Cowart's third-party
suit was clearly not instituted within this period: he filed suit before any award
of LHWCA benefits, and he still has not accepted (or been offered)
compensation under any award. Thus, he does not come within the "plain
meaning" of subsection (f), and, accordingly, for the reasons given above, he
would not be bound by the subsection (g)(1) written-approval requirement. It
would also follow that, because Nicklos indisputably received the notice
required by subsection (g)(2), that provision would not bar Cowart from
receiving LHWCA compensation and medical benefits.

55

Indeed, if Cowart is not covered by subsection (f), he would appear to have

been eligible for a larger award than he sought. Subsection (f) does not
authorize compensation otherwise unavailable; instead, it operates as a limit, in
the specified circumstances, on the employer's LHWCA liability. If read
literally, subsection (f) would not bar Cowart from receiving full LHWCA
benefits, in addition to the amount he received in settlement of the third-party
claim.

56

It is true that 33(f) has not always been read literally. Subsection (f) has been
assumed to be applicable where, for example, the claimant's third-party suit
was filed after an employer voluntarily began paying LHWCA compensation,
not just where compensation was paid pursuant to an award. See, e.g., I.T.O.
Corp. of Baltimore v. Sellman, 954 F.2d 239, 240, 243-245 (CA4 1992);
Shellman v. United States Lines, Inc., 528 F.2d 675, 678-679, n. 2 (CA9 1975),
cert. denied, 425 U.S. 936, 96 S.Ct. 1668, 48 L.Ed.2d 177 (1976) (referring to
the availability of an employer's lien, where the employer has paid
compensation without an award, as "judicially created" rather than statutory).
That interpretation is eminently sensible and consistent with the statutory

purpose of encouraging employers to make payments "promptly," "directly,"

and "without an award." See 14(a). A contrary interpretation would penalize
employers who acknowledge liability and commence payments without seeking
an award, and it would reward employers who, whether in good faith or bad,
contest their liability until faced with a formal award. See Shellman, 528 F.2d,
at 679, n. 2 ("The purpose of this Act would be frustrated if a different result
could be reached merely because the employer pays compensation without
entry of a formal award.").
57

It is not obvious, however, that a similar argument from statutory purpose

should be available to employers such as Nicklos who refuse to pay benefits
and then seek shelter under 33(f) (and by extension, 33(g)(1)). And the fact
remains that the Court professes to interpret the "clear meaning" of the statute
"as written." The Court's interpretation today, however, is no more compelled
by the language of the LHWCA than the interpretation Cowart defends: the
Court is simply insensible to the fact that it implicitly has relied upon presumed
statutory purposes and policy considerations to bring Nicklos and Cowart under
the setoff provisions of 33(f), thus absolving Nicklos of the first $29,000 in
LHWCA liability. Only at that point does the Court invoke the plain meaning
rule and insist on a "literal" interpretation of 33(g)(1). This selective
insistence on "plain meaning" deprives Cowart's estate of the last $6,242.77
Nicklos would otherwise have been bound to pay.

B
58

For these reasons, I think it clear that a purely textual approach to the LHWCA
cannot justify the Court's holding. In my view, a more sensible approach is to
consider 33(g) as courts always have considered the other parts of 33in
relation to the history, structure, and policies of the Act.

59

* Looking first to 33's history, for present purposes the most relevant aspect is
the 1984 amendment to 33(g) through which that provision assumed its
present form. The amended provision clearly bears the impress of the Board's
O'Leary decision. The reference in 33(g)(2) to that subsection's applicability,
"regardless of whether the employer or the employer's insurer has made
payments or acknowledged entitlement to benefits," tracks the limitation
recognized in O'Leary a limitation that had been unanimously approved by
panels of two Federal Courts of Appeals. The question, then, is whether
Congress sought to incorporate that holding or to repudiate it in the 1984
amendments to 33(g).

60

The critical fact in this inquiry is Congress' use of the term "employee," rather

than "person entitled to compensation," in connection with the notification

requirement. The use of this term is in marked contrast to the other clauses of
33(g). Section 33(g)(1) conditions 33(f) compensation of a settling "person
entitled to compensation" on securing the employer's written approval, and
33(g)(2) provides, somewhat redundantly, that a "person entitled to
compensation" forfeits all rights to compensation and medical benefits if the
written approval mentioned in 33(g)(1) is not obtained. The notification
clause of 33(g)(2), however, provides that "if the employee fails to notify the
employer of any settlement obtained from or judgment rendered against a third
person, all rights to compensation and medical benefits . . . shall be terminated,
regardless of whether the employer or the employer's insurer has made
payments or acknowledged entitlement to benefits" (emphasis added).
61

The use of the term "employee" in 33(g)(2) strongly suggests that Congress
intended to incorporate the BRB's holding in O'Leary. As mentioned, the
language Congress chose for the last clause of 33(g)(2) indicates that it was
aware the Board had adopted a restrictive interpretation of the term "person
entitled to compensation." Congress retained that term in connection with the
written approval requirement of subsection (g)(1). Yet Congress chose the
broad term, "employee," for the notification clause of subsection (g)(2), and
"employee," unlike "person entitled to compensation," is a term expressly
defined in the statute. See 2(3).2 The Court cannot explain why Congress
would have chosen two different terms to apply to the different requirements.
Indeed, on the Court's interpretation, the two terms are identical in their
extension. On the Court's reading, the term "person entitled to compensation"
denotes only a statutory employee who has a claim that, aside from the
requirements of 33(g), would be recognized as valid. And that is exactly the
denotation of the term "employee" in connection with the notification
requirement. The fact that Congress chose to use different terms in connection
with the different 33(g) requirementsusing, with respect to the written
approval requirement, a term that it knew had been narrowly interpreted, and
using, with respect to the notification requirement, a term broadly defined in the
statute itselfsurely indicates that Congress intended the two terms to have
different meanings. Had Congress intended the meaning the Court attributes to
it, it would have used the same term in both contexts.3

2
62

The inference that Congress intended to adopt the O'Leary rule in the amended
language of 33(g) is only strengthened by consideration of the factual context
to which the provision was designed to apply. As the Board noted in O'Leary,
and as the Director argued to the Court of Appeals, the Act presumes that

employers, as a rule, will promptly recognize their LHWCA obligations and

commence payments immediately, without the need for a formal award. See
14(a). In that situation, the claimant generally knows the value of the benefits
to be received, and can accurately compare that figure to any settlement offer.
The claimant in this situation has no strong interest in the precise amount of any
settlement that nets less than the statutory benefits, so long as the costs of suit
are covered, because by operation of 33(f), he would not be allowed to retain
any of the proceeds. On the other hand, the employer who has acknowledged
liability has a strong interest in recovering from the third party any benefits
already paid to the claimant and in reducing or eliminating any future benefits it
has committed itself to pay. For the employer in this situation, the precise
amount of a settlement for less than the claimant's statutory benefits is vitally
important: any net dollar the claimant recovers in a third-party action is a dollar
less the employer will have to pay in LHWCA benefits.
63

Given the parties' different incentives in the situation where the employer
already is paying benefits, it makes sense to require the claimant to protect the
employer's interest, by requiring settlements to be reasonable in the employer's
judgment. At the same time, giving the employer this power of approval does
not generally threaten the claimant's interests, since, as mentioned, only the
employer has an interest in settlements above the threshold of the claimantplaintiff's expenses and below the amount of promised or delivered LHWCA
benefits.

64

Matters are quite different, however, when (as in the present case) the employer
has refused to make statutory payments and is not subject to an enforceable
award at the time of settlement. First, the claimant generally will not be able to
estimate with certainty whether he will receive any LHWCA benefits, let alone
how much. Accordingly, the calculation required by 33(g)a comparison
between LHWCA benefits and settlement amountwill be far more difficult.
Second, the claimant who is not receiving LHWCA payments, and who cannot
be certain that he ever will receive payments, will have a much more powerful
interest in negotiating a third-party settlement that is as favorable as possible.
This claimant, unlike its counterpart who is receiving payments, therefore will
have a strong incentive independent of the 33(g) requirementsto protect any
interest the employer might have in reducing potential LHWCA liability.
Finally, disabled longshore employees, or the families of a longshoreman killed
on the job, are likely to be in a highly vulnerable position, subject to financial
pressure that may lead them to overvalue a present lump-sum payment and
undervalue future periodic payments that might eventually be available under
an LHWCA award.

65

The employer who refuses to pay, by contrast, has taken the position that it
owes no LHWCA benefits that may be reduced through a third-party
settlement, and thus that it has no real interest in the amount for which the third
party settles. Moreover, as has been noted, the claimant who is not receiving
benefits has a strong incentive to protect the employer's interest in reducing or
eliminating any LHWCA liability that might eventually be imposed. Under the
Court's interpretation of 33(g)(1), however, such an employer in many cases
can ensure that it will never be required to pay LHWCA benefits, even if it
might otherwise ultimately be determined to be liable, simply by withholding
approval of any settlement offer, regardless of amount. In practice, recalcitrant
employers will seek to exempt themselves from statutory liability by
withholding approval of settlements, hoping that their employees' need for
present funds will force them to settle without approval. I cannot believe that
Congress intended to require LHWCA claimants to bet their statutory benefits
on the possibility that future administrative and perhaps judicial proceedings,
years later, might vindicate their position that the employer should have been
paying benefitsparticularly when the employer's asserted interest is already
adequately protected independently of 33(g)(1).

3
66

The Court recognizes the patent unfairness of this situation, and it as much as
admits that its interpretation is out of line with the policies of the Act. See ante,
at 483. Nevertheless, the Court holds that the plain meaning of the term "person
entitled to compensation" clearly applies to both categories of claimantsthose
whose employers have denied liability, as well as those whose employers have
acknowledged that they must pay statutory benefits. See ante, at 2595. For that
reason, the Court implies, regardless of what Congress may have thought it was
accomplishing in the 1984 amendments, the words "person entitled to
compensation" simply will not bear the construction O'Leary gave them. See
ante, at 478-479.

67

Even setting aside my doubts, expressed above, about the plain meaning rule's
application to this statute, I am not persuaded by the Court's contention. In my
view, it does not strain ordinary language to describe claimants whose
employers have acknowledged LHWCA liability as "persons entitled to
compensation," but to withhold that description from claimants whose
employers have denied liability for compensation. This is particularly so, given
the context in which the term appears in the statute. Section 33(g)(1) requires
the "person entitled to compensation" to compare two figuresthe amount of a
settlement offer, on the one hand, and the amount of compensation to which the
person is entitled, on the other. But what is that latter figure in a situation in

which the employer denies liability in full or in part? Doubtless, the claimant
could hazard a guess by consulting the Act's jurisdictional provisions
concerning who is covered for which kind of accident, the compensation
schedules included in the Act, and, in the case of a disability claim, the opinion
of the claimant's doctor that the claimant in fact is disabled. The very nature of
the situation, however, is that it is not clear that such a person is indeed
"entitled to compensation"that question, after all, is exactly the issue that the
employer's position requires to be determined in administrative and perhaps
subsequent judicial proceedings. The O'Leary limitation of the term "person
entitled to compensation" to the situation in which the claimant's employer has
acknowledged liability and commenced payments seems to me fully consistent
with the requirements of ordinary language.
68

It is true, as the Court observes, that under the O'Leary interpretation, the term
"person entitled to compensation" would take on different meanings in different
contexts. See ante, at 478. This Court, however, has not inflexibly required the
same term to be interpreted in the same way for all purposes. Compare Barnhill
v. Johnson, 503 U.S. 393, 401-402, 112 S.Ct. 1386, 1391-1392, 118 L.Ed.2d 39
(1992) with id., at 496, 112 S.Ct., at 1393 (STEVENS, J., dissenting) (noting
that the maxim is "not inexorable," but arguing that because "nothing in the
[statute's] structure or purpose" counsels otherwise, the Court should have
applied it). This Court has recognized:

69

"Most words have different shades of meaning and consequently may be

variously construed, not only when they occur in different statutes, but when
used more than once in the same statute or even in the same section. . . .

70

"It is not unusual for the same word to be used with different meanings in the
same act, and there is no rule of statutory construction which precludes the
courts from giving to the word the meaning which the legislature intended it
should have in each instance." Atlantic Cleaners & Dyers, Inc. v. United States,
286 U.S. 427, 433, 52 S.Ct. 607, 609, 76 L.Ed. 1204 (1932).

71

This case is one in which the statutory term in question should be read
contextually, rather than under the assumption that the term necessarily has the
same meaning in all contexts. The phrase "person entitled to compensation" is
not defined in the statute, and it is susceptible of at least two interpretationsa
"formalist" interpretation, according to which one may be entitled to
compensation whether or not anyone ever acknowledges that fact, and a
"positivist" or "legal realist" interpretation, according to which one is entitled to
compensation only if the relevant decisionmaker has so declared. Which of
these two senses is "correct" will depend upon context. The latter sense, I have

suggested, is appropriate to a context in which liability for compensation is

disputed and the employee is called upon to predict the future course of
administrative and perhaps judicial proceedingsnot just as to liability, but as
to the precise amount of liability. And, in any event, I think, the text and
circumstances of the 1984 amendment to 33(g) indicate that Congress
intended to adopt the "realist" interpretation found in O'Leary.
72

Moreover, the Court simply has failed to apply, or even mention, a maxim of
interpretation, specifically applicable to the LHWCA, that strongly supports
Cowart's position. This Court long has held that " '[t]his Act must be liberally
construed in conformance with its purpose, and in a way which avoids harsh
and incongruous results.' " Director, OWCP v. Perini North River Associates,
459 U.S. 297, 315-316, 103 S.Ct. 634, 646, 74 L.Ed.2d 465 (1983), quoting
Voris v. Eikel, 346 U.S., at 333, 74 S.Ct., at 91. The only point at which the
Court in this case consults the purposes of the Act is at the end of its opinion,
when it assures the reader that its interpretation of the notification requirement
of 33(g)(2)as opposed to its interpretation of the written approval
requirement stated in 33(g)(1)is consistent with the statute's purposes. See
ante, at 482. Finally, underscoring its refusal to apply the maxim of liberal
construction to this case, the Court ultimately acknowledges that the
interpretation of 33(g) it has adopted has "harsh effects" and "creates a trap
for the unwary." Ante, at 483. For my part, I can imagine no more appropriate
occasion on which the maxim should be applied.

4
73

Once it is recognized that a claimant whose employer denies LHWCA liability

is not a "person entitled to compensation" for purposes of 33(g)(1), the proper
resolution of this case is clear. Cowart was just such a claimant, and,
accordingly, he was not bound by 33(g)(1)'s written approval requirement. It
is undisputed that he satisfied the notice requirement of 33(g)(2). It follows
that 33(g) is no bar to Cowart's eligibility for benefits.

III
74

The Court recognizes "the stark and troubling possibility that significant
numbers of injured workers or their families may be stripped of their LHWCA
benefits by this statute." Ibid. It attempts to justify the "harsh effects" of its
decision on the ground that it is but the faithful agent of the legislature, and
"Congress has spoken with great clarity to the precise question raised by this
case." Ibid. In my view, Congress did not answer the question in the way the
Court suggests, let alone did it do so "with great clarity." The responsibility for

today's unfortunate decision rests not with Congress, but with this very Court.
75

I dissent.

The syllabus constitutes no part of the opinion of the Court but has been
prepared by the Reporter of Decisions for the convenience of the reader. See
United States v. Detroit Lumber Co., 200 U.S. 321, 337, 26 S.Ct. 282, 287, 50
L.Ed. 499.

The BRB consists of persons appointed by the Secretary of Labor and

empowered to "hear and determine appeals raising a substantial question of law
or fact" with respect to LHWCA benefits claims. 21(b)(3), 33 U.S.C. 921(b)
(3).

Subject to exceptions not applicable here, that section of the Act defines the
term "employee" as "any person engaged in maritime employment, including
any longshoreman or other person engaged in longshoring operations, and any
harborworker including a ship repairman, shipbuilder, and ship-breaker."

Two of the Court's other arguments concerning the 1984 amendments may
deserve brief mention. First, the Court suggests in passing that "the legislative
history of predecessor bills to the eventual 1984 enactment do indicate an intent
to overturn O'Leary," citing snippets of written testimony submitted during the
lengthy 1981 hearings. See ante, at 478. Needless to say, statements buried in
hearings conducted three years before the bill's passage fall far short of
demonstrating any such congressional intent. The BRB was correct when it said
in Dorsey that the legislative history of the 1984 amendments indicates no
intention to overturn O'Leary.
Second, the Court places great significance upon the fact that "at least some
elements within the Department of Labor" read the post-1984 statute differently
from the Director of OWCP. Ante, at 482. The Court is quite clear, however,
that it is the Director who administers the Act, see ante, at 480, not these other
"elements," and that the Director does not ask for deference to his recently
adopted interpretation.